State of Minnesota v. Isaac Gutierrez
Opinion text
This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1747
State of Minnesota,
Appellant,
vs.
Isaac Gutierrez,
Respondent.
Filed September 2, 2025
Affirmed
Larson, Judge
Dissenting, Larkin, Judge
Olmsted County District Court
File No. 55-CR-24-849
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael T. Walters, Olmsted County Attorney, A. Michael DeBolt, Andrew M.
LeTourneau, Assistant County Attorneys, Rochester, Minnesota (for appellant)
Eric L. Newmark, Newmark Law Office, Minnetonka, Minnesota (for respondent)
Considered and decided by Bentley, Presiding Judge; Larkin, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant State of Minnesota challenges the district court’s decision to grant
respondent Isaac Gutierrez’s motion for a downward durational departure after a jury found
him guilty of second-degree unintentional felony murder under Minn. Stat. § 609.19,
subd. 2(1) (2022). Because we conclude the district court did not abuse its discretion, we
affirm.
FACTS
In February 2024, the state charged Gutierrez with second-degree intentional
murder under Minn. Stat. § 609.19, subd. 1(1) (2022), second-degree unintentional felony
murder under Minn. Stat. § 609.19, subd. 2(1), and second-degree assault with a dangerous
weapon under Minn. Stat. § 609.222, subd. 1 (2022). The following facts were elicited at
a jury trial.
On February 3, 2024, Gutierrez and his brother (brother) went shopping at a mall.
Afterwards, they drove to a fast-food restaurant. Brother, the driver, attempted to back into
a parking spot but was unable to do so because another vehicle “was in the way.” The
driver of the other vehicle (victim) honked his horn, and a verbal altercation between
brother and victim ensued. Obscenities were exchanged, and victim directed brother to
“pull forward.” Brother and victim both exited their vehicles and continued arguing.
Brother took a gun out of his pants and showed it to victim. Victim’s mother asked brother
to put the gun away, and brother placed it in the driver’s seat of his vehicle, next to
Guiterrez. From the passenger seat, Gutierrez observed brother and victim physically
fighting, but did not join the fight “[b]ecause it was one-on-one.” Gutierrez then observed
another passenger (passenger) from victim’s vehicle join the fight and saw that “brother
was struggling” and “using his hands to keep [victim and passenger] away from him rather
than throwing punches.” At that point, Gutierrez “grabbed the firearm and . . . ran over to
try to assist . . . brother.” Gutierrez, intending to use the gun “as a . . . striking weapon,”
2
tried to pull victim and passenger off brother. Gutierrez “went to push and then . . . went
to strike,” using “the palm of [his] hand and the butt of the gun.” Gutierrez brought the
gun down on victim’s back, the gun fired, and a bullet fatally struck victim in the head.
After shooting victim, Gutierrez handed the gun to brother and called 911. Gutierrez told
the 911 operator that “[s]omeone got shot,” and waited “to make sure [victim] got the aid.”
Law enforcement arrived within minutes and arrested Gutierrez.
At trial, Gutierrez agreed that he did not “know much about the mechanics of
firearms.” Gutierrez testified that he believed that the gun was unloaded and not “in a
position to fire” when he grabbed it. Gutierrez also testified that he did not intentionally
pull the trigger.
Before the case was submitted to the jury for deliberation, the state dismissed the
second-degree assault charge. Thereafter, the jury found Gutierrez not guilty of second-
degree intentional murder and guilty of second-degree unintentional felony murder.
At a later sentencing hearing, Gutierrez moved for a downward dispositional
departure or, in the alternative, a downward durational departure to a 48-month executed
prison term from the presumptive 150-month executed prison term. The state requested
that the district court impose a 180-month executed prison term—a sentence at the top of
the presumptive guidelines range. The district court heard arguments from both parties
and a statement from Gutierrez. The district court reviewed the sentencing worksheet,
presentence investigation report, Gutierrez’s motion and memorandum in support of
departure, letters of support submitted on Gutierrez’s behalf, and a written victim-impact
statement. The district court also heard additional victim-impact statements that were read
3
at the sentencing hearing. After receiving this evidence, the district court indicated that it
needed more time to decide the appropriate sentence and continued the hearing. The
district court expressed that this additional time was necessary so that it could “organize
[its] thoughts” and be “sure [it was] doing the right thing for the family, for the community
and, . . . for [Gutierrez].” The district court also noted that it had requested a data report
from the Minnesota Sentencing Guidelines Commission with statistics regarding
departures in second-degree unintentional felony-murder cases. 1
At the continued sentencing hearing, the district court denied Gutierrez’s motion for
a downward dispositional departure, granted his motion for a downward durational
departure, and sentenced Gutierrez to a 60-month executed prison term. The district court
explained that it arrived at its decision after “review[ing] all of the Olmsted County cases
. . . since 2001 where a defendant was sentenced to [s]econd [d]egree [u]nintentional
[m]urder” with a specific focus on “cases involving a weapon.” Accordingly, based on its
review of these cases, the district court determined that the circumstances of Gutierrez’s
crime were “less onerous” than typical, and provided the following explanation for this
determination:
[Gutierrez] in no way planned to shoot [victim] on
February 3rd. He was just going to [a fast-food restaurant] for
lunch. It was . . . brother who had the permit to carry and
introduced the gun to the situation. Unknown to [Gutierrez],
. . . brother racked the gun previously so a bullet was in the
1
The data report is in the record. The data report advised the district court that, of the 551
second-degree unintentional felony-murder convictions sentenced between 2001 and 2022,
district courts had granted downward durational departures in 86 cases. Of those 86, the
data report reflected “[l]ess onerous/weapon type less serious/gun not loaded” as the reason
for departure in five cases.
4
chamber when he brought it back to the truck where
[Gutierrez], in a split-second decision, grabbed the gun off the
seat.
Further, there were actions of others that played roles in
this tragedy. [Victim] himself started the entire situation when
instead of patiently waiting for 30 seconds for [brother] to park,
[he] rolled down his window, yelled profanities, and ordered
[brother] to pull forward so they could fight.
Then [brother] did just that, rather than just leaving the
parking lot. The two men confronted each other before
[brother] pulled that gun, which didn’t even seem to faze
[victim].
Then [passenger], rather than just letting this be a one-
on-one fight, decided to join the fray, causing [Gutierrez] to
make that horrible decision to run to . . . brother’s defense with
the loaded gun.
Looking at these facts, and then also considering the fact
that, [Gutierrez], you did not run from law enforcement. You
were cooperative, even calling or attempt[ing] to call 911
yourself.
And finally, even though we had a trial, you accepted
responsibility for the role you played, and you have expressed
and shown remorse.
So[,] with all of that I do believe a durational departure
from the guidelines is warranted.
The district court’s departure report—a form created by the Minnesota Sentencing
Guidelines Commission—indicates that the district court granted the downward durational
departure for the following reasons: “[v]ictim was aggressor in incident” and “[c]rime less
onerous than usual.”
This appeal follows.
5
DECISION
The state challenges the district court’s decision to impose a downward durational
departure from the Minnesota Sentencing Guidelines. Specifically, the state asserts that
the district court abused its discretion when it determined that Gutierrez’s conduct was
significantly less serious than that typically involved in the commission of second-degree
unintentional felony murder.
“We afford the [district] court great discretion in” sentencing and review departure
decisions for an abuse of discretion. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). “A
reviewing court generally will not interfere with that discretion unless it has a strong feeling
that the sentence is disproportionate to the offense.” State v. Schenk, 427 N.W.2d 12, 13
(Minn. App. 1988) (quotation omitted). “A district court abuses its discretion when its
reasons for departure are improper or inadequate.” State v. Rund, 896 N.W.2d 527, 532
(Minn. 2017). If a district court’s reasons for granting a departure are stated on the record,
we “will examine the record to determine if the reasons given justify the departure. . . . If
the reasons given justify the departure, the departure will be allowed.” Williams v. State,
361 N.W.2d 840, 844 (Minn. 1985).
The Minnesota Sentencing Guidelines provide presumptive sentencing ranges to
“maintain uniformity, proportionality, rationality, and predictability in sentencing.” Minn.
Stat. § 244.09, subd. 5 (2024). Therefore, “departures from the guidelines are discouraged
and are intended to apply to a small number of cases.” State v. Solberg, 882 N.W.2d 618,
623 (Minn. 2016). A district court may depart from a presumptive sentence only if there
are “identifiable, substantial, and compelling circumstances to support a departure.” Minn.
6
Sent’g Guidelines 2.D.1 (2022). “Substantial and compelling circumstances are those
circumstances that make the facts of a particular case different from a typical case.” State
v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). When granting a downward durational
departure, the district court must rely “on factors that reflect the seriousness of the offense,
not the characteristics of the offender.” Solberg, 882 N.W.2d at 623-24. The guidelines
provide a “nonexclusive list of factors” that a district court may use to depart. Minn. Sent’g
Guidelines 2.D.3 (2022). And “a single mitigating factor, standing alone, may justify a
downward durational departure.” Solberg, 882 N.W.2d at 624-25.
“[T]o be the basis for a downward departure, a factor must tend to excuse or mitigate
the offender’s culpability for the offense.” State v. Esparza, 367 N.W.2d 619, 621 (Minn.
App. 1985). Indeed, “[a] downward durational departure is justified only if the defendant’s
conduct was significantly less serious than that typically involved in the commission of the
offense.” Solberg, 882 N.W.2d at 624 (quotation omitted). In determining whether a
defendant’s conduct was significantly more or less serious than the typical offense, “it is
proper for the sentencing court to consider the course of conduct underlying the charge for
which the defendant is being sentenced.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984);
see also State v. Weaver, 796 N.W.2d 561, 573 (Minn. App. 2011), rev. denied (Minn.
July 19, 2011).
Here, the primary basis upon which the district court granted a downward durational
departure was its determination that Gutierrez’s crime was significantly less serious 2 than
2
We acknowledge that the district court used the phrase “less onerous” rather than “less
serious” when it granted the downward durational departure. Regardless of the specific
7
a typical second-degree unintentional felony murder. A determination that a defendant’s
conduct was significantly less serious than the typical offense is an adequate reason to
support a downward durational departure. See, e.g., State v. Bauer, 471 N.W.2d 363, 367-
68 (Minn. App. 1991) (affirming a “50 percent downward [durational] departure” for
“aiding a suicide” and “felony fetal homicide” convictions based on conclusion that district
court “was well within its discretion in finding Bauer’s conduct less serious than the typical
felony-murder (or feticide) offense”), rev. denied (Minn. July 24, 1991); see also Solberg,
882 N.W.2d at 627.
We conclude that the record justifies the district court’s decision that Gutierrez’s
offense was significantly less serious than a typical second-degree unintentional felony
murder. Before making its decision, the district court obtained a statewide data report and
word that it used on the record at the hearing, it is clear that the district court’s conclusion
was based on its evaluation of the seriousness of Guiterrez’s conduct as compared to the
typical offense. See State v. Scheldrup, No. A23-0442, 2023 WL 5191189, at *3 (Minn.
App. Aug. 14, 2023) (rejecting the state’s argument that the district court abused its
discretion in granting a downward durational departure in part because it “found that [the
defendant’s] crime was ‘less onerous’ . . . rather than finding it was ‘significantly less
serious’”); see also Minn. R. Civ. App. P. 136.01, subd. 1(c) (“[N]onprecedential opinions
may be cited as persuasive authority.”). Further, the “less onerous” language mirrors the
forms provided to the district court from the Minnesota Sentencing Guidelines
Commission in both the data report and the departure report. And we have frequently
affirmed decisions on motions for downward departures, despite the district court’s use of
the word “onerous” rather than “serious.” See, e.g., id.; State v. Ralford, No. A23-1366,
2024 WL 3248143, at *3-4 (Minn. App. July 1, 2024), rev. denied (Oct. 15, 2024); State
v. Juneau, No. A20-1129, 2022 WL 2298971, at *6-7 (Minn. App. June 27, 2022), rev.
denied (Minn. Sept. 20, 2022); State v. Daniliuk, No. A21-0123, 2021 WL 4059657, at *1
(Minn. App. Sept. 7, 2021); State v. Royster, No. A18-1957, 2019 WL 7049505, at *6
(Minn. App. Dec. 23, 2019); State v. Jentzen, No. A18-0129, 2018 WL 6168725, at *3
(Minn. App. Nov. 26, 2018); State v. Nieznanski, No. A14-2055, 2015 WL 2185319, at *3
(Minn. App. May 11, 2015).
8
reviewed every second-degree unintentional felony-murder case in Olmsted County in the
past 23 years to enable it to determine a “typical” second-degree unintentional felony
murder. Upon doing so, the district court determined Guiterrez’s conduct was significantly
less serious than other similarly charged Olmsted County cases. The district court
highlighted that Gutierrez did not instigate the altercation, did not initially introduce the
gun into the situation, did not involve himself until the fight became two-against-one, did
not plan to shoot victim, did not know the gun was loaded, called 911 after the shooting,
and cooperated with law enforcement. These findings were well supported by the evidence
introduced at both trial and sentencing.
The state disagrees that this was an appropriate basis for a downward durational
departure. According to the state, the district court’s decision was based solely on its
finding that Guiterrez did not plan the crime. The state contends that lack of planning is
already accounted for in the guidelines, which assign a lower severity level to second-
degree unintentional murder than to second-degree intentional murder, resulting in a lower
presumptive sentence. Minn. Sent’g Guidelines 4.A (2022); see also Minn. Stat. § 609.19,
subd. 1(1) (2022) (defining second-degree intentional murder as “causes the death of a
human being with intent to effect the death of that person or another, but without
premeditation”); Minn. Stat. § 609.19, subd. 2(1) (defining second-degree unintentional
felony murder as “causes the death of a human being, without intent to effect the death of
any person, while committing or attempting to commit a felony offense”).
The state is correct that the district court may not grant a downward durational
departure based on “facts [that] were already taken into account by the legislature in
9
determining the degree of seriousness of the offense.” Taylor v. State, 670 N.W.2d 584,
589 (Minn. 2003). But we disagree that the district court relied solely on the lack of
planning to determine that Gutierrez’s crime was significantly less serious. To the
contrary, the district court discussed several characteristics that distinguished Gutierrez’s
offense, including that Gutierrez did not instigate the altercation, did not initially introduce
the gun into the situation, did not involve himself until the fight became two-against-one,
did not plan to shoot victim, did not know the gun was loaded, called 911 after the shooting,
and cooperated with law enforcement. The record therefore reflects that the district court
did precisely what it was charged to do—“consider the course of conduct underlying the
charge” to evaluate whether it was significantly less serious than a typical offense. See
Cox, 343 N.W.2d at 643. Accordingly, we conclude that the district court did not grant the
downward durational departure based on its finding that Gutierrez did not plan to shoot
victim, but simply discussed it as one component of its evaluation of Guiterrez’s overall
course of conduct.
The state makes the related argument that the district court failed to adequately
explain how the cases it discussed were examples of a typical second-degree unintentional
murder or how Gutierrez’s conduct was significantly less serious than the conduct of the
defendants in those cases. The record belies the state’s argument. The district court
explained that it ascertained typical-offense conduct for second-degree unintentional
murder by “review[ing] all of the Olmsted County cases . . . since 2001 where a defendant
was sentenced to [s]econd [d]egree [u]nintentional [m]urder,” with a focus on “cases
involving a weapon.” The district court also explained that Gutierrez’s conduct was
10
significantly less serious for the reasons referenced above. And while the state emphasizes
factual distinctions between the cases the district court highlighted and Gutierrez’s case,
the district court made clear that its decision was based on all of the cases it reviewed—
not the few cases it mentioned by name.
Lastly, we are charged with using “our collective, collegial experience in reviewing
a large number of criminal appeals” to assess whether the district court’s determination
was justified. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985) (quotation omitted);
see also Weaver, 796 N.W.2d at 573-74 (“In the final analysis, an appellate court’s decision
whether a particular durational departure is justified ‘must be based on [its] collective,
collegial experience in reviewing a large number of criminal appeals from all the judicial
districts.’” (quoting State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982))). In doing so,
we engage in a similar analysis to that conducted by the district court here and make
comparisons to similar cases. See, e.g., Tucker v. State, 799 N.W.2d 583, 587 (Minn.
2011). Our review of recent second-degree unintentional felony-murder cases throughout
the state further supports the district court’s determination that Guiterrez’s crime was
significantly less serious than a typical offense. See State v. Edmondson, No. A23-0736,
2024 WL 910685, at *1-2 (Minn. App. Mar. 4, 2024) (the defendant fired a gun into a car
with five juvenile occupants, killing one victim, and received a presumptive sentence of
240 months in prison); State v. Reed, No. A22-0107, 2023 WL 3048000, at *1-4 (Minn.
App. Apr. 24, 2023) (the defendant shot the victim twice after a physical altercation where
seven other people were present “in a tight space” and received a presumptive sentence of
180 months in prison); Daniels v. State, No. A17-0623, 2018 WL 817286, at *2 (Minn.
11
App. Feb. 12, 2018) (the defendant fired a gun into a group of people causing the victim’s
death), rev. denied (Minn. Apr. 25, 2018).
For these reasons, we conclude the district court did not abuse its discretion when it
determined Gutierrez’s crime was significantly less serious than a typical second-degree
unintentional felony murder.
The state next argues that the district court abused its discretion when it granted the
departure on the basis that victim was an aggressor, arguing the district court’s finding that
victim was the initial aggressor is clearly erroneous. First, as noted above, “a single
mitigating factor, standing alone, may justify a downward durational departure.” Solberg,
882 N.W.2d at 624-25; see also State v. Malone, No. A17-1427, 2018 WL 1040763, at *4
(Minn. App. Feb. 26, 2018) (declining to “reach the state’s argument that the district court
improperly relied on [the defendant’s] remorse, responsibility, and amenability to
treatment” where the district court also determined the crime was significantly “less serious
than typical” as a basis for a downward durational departure). As such, even if the district
court erred in considering that the victim was an aggressor, the decision to grant a
downward durational departure is adequately supported by the conclusion that Gutierrez’s
conduct was significantly less serious that that typically involved in the commission of the
same offense.
Nevertheless, we do not discern that the district court clearly erred when it found
victim was an aggressor. The district court found that “[victim] himself started the entire
situation when instead of patiently waiting for 30 seconds for [brother] to park, [he] rolled
down his window, yelled profanities, and ordered [brother] to pull forward so they could
12
fight.” This finding is well supported by the trial and sentencing record. And, under the
Minnesota Sentencing Guidelines, the district court may consider whether “victim was an
aggressor,” even if not the sole aggressor. Minn. Sent’g Guidelines 2.D.3.a.1; see also
State v. Mayo, No. A15-0511, 2016 WL 952501, at *8 (Minn. App. Mar. 14, 2016), rev.
denied (Minn. May 31, 2016). Accordingly, the district court did not abuse its discretion
when it relied on the role victim played in the incident because its finding that victim was
an aggressor was not clearly erroneous. See, e.g., State v. Hennum, 441 N.W.2d 793, 801
(Minn. 1989) (reducing the defendant’s sentence where “the victim physically abused
defendant on the night of the incident”); State v. Larson, 473 N.W.2d 907, 908, 910 (Minn.
App. 1991) (affirming the district court’s decision to grant a dispositional departure on the
basis that the victim was the initial aggressor because earlier the same day “he hit and
threatened respondent”); State v. Hougen, No. C2-96-144, 1997 WL 3608, at *1-2 (Minn.
App. Jan. 7, 1997) (affirming the district court’s decision to impose a downward departure
for circumstances involving a fight where the defendant was not initially involved).
The state next argues the district court abused its discretion when it granted the
downward durational departure based upon Gutierrez’s remorse. 3 Again, as noted above,
“a single mitigating factor, standing alone, may justify a downward durational departure.”
Solberg, 882 N.W.2d at 624-25; see also Malone, 2018 WL 1040763, at *4. As such, even
if the district court did err in its analysis of Gutierrez’s remorse, for the reasons set forth
3
We note that the district court did not cite remorse as a basis for the departure in the
departure report.
13
above, the decision to grant a downward durational departure remains supported by the
record.
Nevertheless, we again conclude that the district court did not abuse its discretion
when it relied on its factual findings with respect to Gutierrez’s remorse. Remorse may
justify a downward durational departure if it “is directly related to the criminal conduct at
issue and made that conduct significantly less serious than the typical conduct underlying
the offense of conviction.” Solberg, 882 N.W.2d at 626. Here, the district court’s finding
on remorse related to Gutierrez’s conduct at the time of the offense. The district court
found that after shooting victim, Gutierrez “did not run from law enforcement,” was
“cooperative,” and “call[ed] 911.” These findings are well supported by the record, which
shows that Gutierrez “felt terrible” in the immediate aftermath of the shooting. He called
911 to report that someone had been shot and waited at the scene “to make sure [victim]
got . . . aid.” This immediate showing of remorse and acceptance of responsibility is
directly related to Gutierrez’s conduct in this case. Id. (allowing consideration of a
defendant’s remorse when it “bears on a determination of the . . . seriousness of the conduct
on which the conviction was based”); see also Daniliuk, 2021 WL 4059657, at *4
(affirming a downward durational departure based, in part, on remorse where, “[a]fter
causing the accident, Daniliuk got out of the car and expressed remorse through an apology
to one of the victims at the scene of the accident”); State v. Steurer, No. A17-1737, 2018
WL 5316198, at *6 (Minn. App. Oct. 29, 2018) (affirming an upward durational departure
based on lack of remorse where the defendant “did not help [the victim] by trying to stop
14
the bleeding or calling 911”), rev. denied (Minn. Jan. 15, 2019). Therefore, the district
court did not abuse its discretion.
Finally, the state contends that the district court abused its discretion in the length
of the departure ordered. But the Minnesota Sentencing Guidelines recognize that “[a]
departure is . . . an exercise of judicial discretion.” Minn. Sent’g Guidelines 2.D.1. And
we are not aware of any case wherein we have determined that the district court had an
adequate basis for a downward durational departure but reversed for the imposition of a
longer prison term. We also note that the district court’s imposition of a 60-month prison
term appears to reflect its consideration of Gutierrez’s request for a 48-month prison term.
We therefore conclude that, in this case, the downward durational departure granted was
not an abuse of the district court’s broad discretion. See, e.g., State v. Martinson, 671
N.W.2d 887, 891-93 (Minn. App. 2003) (rejecting the state’s argument that the district
court abused its discretion by departing from a presumptive 150-month prison term to a
75-month prison term for second-degree murder after concluding the crime was
significantly less serious because “Martinson had a mental illness before, during, and after
the incident”), rev. denied (Minn. Jan. 20, 2004); State v. Weaver, No. A17-1993, 2018
WL 6442166, at *2, *6 (Minn. App. Dec. 10, 2018) (rejecting the state’s argument that the
district court abused its discretion by departing from a presumptive range of 100-to-140
months to 48 months in part because “the sentencing guidelines recognize that a departure
is an exercise of judicial discretion” (quotation omitted)).
In conclusion, we are “extremely deferential” to a district court’s decision whether
to impose a departure, Dillon v. State, 781 N.W.2d 588, 595-96 (Minn. App. 2010), rev.
15
denied (Minn. July 20, 2010), “and we cannot simply substitute our judgment for that of
the [district] court,” Spain, 590 N.W.2d at 88. “[A]s long as the record shows the [district]
court carefully evaluated all the testimony and information presented before making a
determination,” we do not interfere with the district court’s decision. State v. Pegel, 795
N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Here, the district court provided
legally supported reasons for the departure, carefully examined all the information
presented, and conducted an independent inquiry into typical second-degree unintentional
felony-murder offenses before reaching its decision. Under these circumstances,
regardless of whether we would have reached the same decision, we cannot conclude the
district court abused its broad discretion.
Affirmed.
16
LARKIN, Judge (dissenting)
I respectfully dissent. Because the district court’s departure reasons are improper
or inadequate, because my review of the record does not reveal alternative grounds to
support the departure, and because in my judgment, the sanction imposed is not
proportional to the severity of the offense as mitigated by the circumstances, I would
reverse and remand for imposition of a presumptive sentence.
Minnesota’s Guidelines Sentencing System
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses and seek to “maintain uniformity, proportionality, rationality, and predictability
in sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). “Underlying the Guidelines is the
notion that the purposes of the law will not be served if judges fail to follow the Guidelines
in the ‘general’ case.” State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (overruled on
other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996). “Consequently,
departures from the guidelines are discouraged and are intended to apply to a small number
of cases.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
“[D]epartures are justified only in exceptional cases.” Id. at 625. A district court
may depart from the presumptive sentence only if there are “identifiable, substantial, and
compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp.
2023). The sentencing guidelines contain a list of recognized departure reasons that “are
intended to apply to a small number of cases.” State v. Misquadace, 644 N.W.2d 65, 68
(Minn. 2002).
D-1
A district court has broad discretion to depart from a presumptive sentence so long
as substantial and compelling circumstances are present, and we generally will not interfere
with an exercise of that discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
However, “[t]he use of an abuse-of-discretion standard in our review of sentencing
decisions, while deferential, is not a limitless grant of power to the [district] court.” State
v. Soto, 855 N.W.2d 303, 312 (Minn. 2014) (quotation omitted).
If a departure is granted, the district court must provide written reasons, which
specify “the particular substantial and compelling circumstances that make the departure
more appropriate than the presumptive sentence.” Minn. Sent’g Guidelines 2.D.1.c (Supp.
2023). “When the district court gives improper or inadequate reasons for a downward
departure, we may scrutinize the record to determine whether alternative grounds support
the departure.” Solberg, 882 N.W.2d at 623. “Reversal is required when the reasons given
are improper or inadequate and the record contains insufficient evidence to justify the
departure.” State v. Rund, 896 N.W.2d 527, 533 (Minn. 2017).
The Presumptive Sentence Range and Departure Grounds
The presumptive sentence for Gutierrez’s conviction of second-degree felony
murder is 150 months in prison, with a permissible sentence range of 128 to 180 months in
prison. Minn. Sent’g. Guidelines 4.A (Supp. 2023). As support for its durational departure
and imposition of a sentence of only 60 months, the district court endorsed two reasons on
its departure report: (1) “[v]ictim was aggressor in incident” and (2) “[c]rime less onerous
than usual.” In addition, the district court made several statements on the record identifying
the circumstances that influenced its decision to depart. For example, the district court
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noted that the offense involved “a bunch of stupid boys that don’t have fully developed
brains” and “a bunch of undeveloped brains, hormones, just engaging in the most stupid
situation.” At the initial sentencing hearing, the district court judge told Gutierrez, “I don’t
want to send you to prison because, you know, that’s not going to bring anybody back”
and “I do see remorse.” At the continued sentencing hearing, the district court judge told
Guiterrez, “in my heart I don’t want to send you to prison.”
In granting the durational departure, the district court stated the following reasons
on the record: “offender playing a minor or passive role; victim being the aggressor in the
incident; or a crime less onerous than usual.” The district court noted that it had reviewed
all of the local cases in which a defendant had been sentenced to second-degree
unintentional murder and that “in all of the cases, the defendant was the one who brought
the weapon specifically to confront the victim.” The district court said that this case was
less “onerous” than those cases.
The district court explained that Gutierrez “in no way planned to shoot” the victim,
that his brother “introduced the gun to the situation,” and that the victim “himself started
the entire situation.” The district court also explained that the victim’s passenger “decided
to join the fray” as the victim and Gutierrez’s brother fought, “rather than just letting this
be a one-on-one fight,” which caused Gutierrez “to make that horrible decision to run to
his brother’s defense with the loaded gun.” The district court further explained that
Gutierrez did not run from law enforcement, was cooperative, and even called or attempted
to call 911 from the scene. Finally, the district court explained that even though the case
had gone to trial, Gutierrez accepted responsibility for the role he played in the victim’s
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death and had shown remorse. The court concluded, “[s]o with all of that I do believe a
durational departure from the guidelines is warranted.”
The state argues that the reasons cited by the district court do not justify a downward
durational departure. For the reasons that follow, I agree.
Significantly Less Serious
Over 40 years ago, the supreme court stated: “The general issue that faces a
sentencing court in deciding whether to depart durationally is whether the defendant’s
conduct was significantly more or less serious than that typically involved in the
commission of the crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).
Just as an upward durational departure is justified if the
defendant’s conduct is significantly more serious than that
typically associated with the commission of the offense, a
downward durational departure is justified if the defendant’s
conduct is significantly less serious than that typically involved
in the commission of the offense.
State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). The supreme court has not
abandoned the “seriousness of the offense” as the primary consideration when reviewing a
durational departure. See Solberg, 882 N.W.2d at 624 (“A downward durational departure
is justified only if the defendant’s conduct was significantly less serious than that typically
involved in the commission of the offense.” (emphasis added) (quotation omitted)).
Here, the district court did not address whether the offense was “significantly less
serious.” Id. (quotation omitted). Instead, the district court addressed whether the offense
was less “onerous.” In the district court’s defense, the standard departure report form
provided by the Minnesota Sentencing Guidelines Commission lists “[c]rime less onerous
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than usual” as a reason frequently used as a mitigating factor. Departure Report Form,
Minn. Sent’g Guidelines Comm’n (2022). [https://perma.cc/6ALT-JZSC]. And as the
majority notes, nonprecedential decisions of this court have not questioned the distinction
between “onerous” and “serious” when reviewing departures.
To the extent that the district court—and our nonprecedential caselaw—equates
“onerous” with “serious,” the district court’s description of the offense indicates that
Gutierrez’s conduct was more serious than a typical second-degree felony murder. For
example, at the initial sentencing hearing, the district court noted that the offense
“happened at 2:30 in the afternoon on a Saturday” and that “many people from our
community . . . were traumatized by what they saw that day.” The court recognized that
“a young man lost his life” and that he was “a father, a son, a brother.” At the continued
sentencing hearing, the district court again noted that “this was something that has affected
the community. It was in broad daylight, an afternoon on a nice Saturday with lots of
people around.” Moreover, as the state argued, Gutierrez killed the victim in front of his
sister and his mother.
“An offense may be more serious than a typical crime when a large number of
people are placed at risk or more people are put in fear than in the typical case.” State v.
Fleming, 869 N.W.2d 319, 326 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016).
The supreme court has “repeatedly held that the risk to bystanders is an appropriate factor
for courts to consider when determining the seriousness of a crime.” State v. Edwards, 774
N.W.2d 596, 607 (Minn. 2009). Given the location, the time of day, and the presence of
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the victim’s relatives and bystanders, Gutierrez’s offense was more serious, and not
significantly less serious.
Minor or Passive Role
The district court noted that the nonexclusive list of permissible departure factors in
the sentencing guidelines includes that the offender played a minor or passive role. Minn.
Sent’g Guidelines 2.D.3.a.(2) (Supp. 2023). The district court stated that “[i]t was
[Gutierrez’s] brother who had the permit to carry and introduced the gun to the situation,”
that “there were actions of others that played roles in this tragedy,” and that the victim
“himself started the entire situation when instead of patiently waiting for 30 seconds for
[Gutierrez’s brother] to park, rolled down his window, yelled profanities, and ordered [him]
to pull forward so they could fight.” The court continued this line of reasoning noting that
Gutierrez’s brother “did just that, rather than just leaving the parking lot” and that the
victim’s passenger, “rather than just letting this be a one-on-one fight, decided to join the
fray, causing [Gutierrez] to make that horrible decision to run to his brother’s defense with
the loaded gun.”
My assessment of whether the district court erred in relying on the minor-or-passive
role factor is influenced by supreme court caselaw. In State v. Carson, 320 N.W.2d 432,
438 (Minn. 1982), the supreme court upheld a downward durational departure based on the
offender’s minor or passive role. In that case, the defendant was one of two women who
robbed a drug store. Carson, 320 N.W.2d at 434. One woman carried a gun and struck a
pharmacist on the head, while the other woman, Carson, “was more passive.” Id. The
supreme court affirmed the district court’s downward durational departure for Carson. Id.
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at 438. And in State v. Stempfley, the supreme court noted that its analysis in Carson, as
well as “the common-sense meaning of minor and passive, show that whether a defendant’s
role in an offense was minor or passive depends on a comparison of the defendant’s
conduct to the conduct of other participants in the crime.” 900 N.W.2d 412, 418 (Minn.
2017) (quotations omitted).
The minor-or-passive-role factor does not favor Gutierrez. Although Gutierrez’s
brother introduced a gun into his verbal dispute with the victim, he returned the gun to his
vehicle and elected to fight the victim unarmed. And there is no indication that the victim
or his passenger were armed. Gutierrez was the one who elected to join the fight armed
with a firearm and to use that firearm as a striking weapon. And Gutierrez’s use of that
firearm was the sole cause of the victim’s death. His role was not minor or passive.
In addition, the district court reasoned that Gutierrez “did a ridiculously stupid thing.
[He] handled a loaded firearm without having the experience or knowledge, and that act
caused the death of another human being.” The district court minimized Gutierrez’s
actions. He did not merely “handle” the firearm. He took possession of the firearm
intending to use it as a striking weapon against the victim and his passenger. The district
court noted that in the local cases it had reviewed and distinguished as more serious, “the
defendant was the one who brought the weapon specifically to confront the victim.” That
is precisely what Gutierrez did. He may not have brought the gun to the crime scene, but
he removed gun from the vehicle “specifically to confront” the victim and his passenger.
The record simply does not support a finding that Gutierrez played a minor or
passive role in the crime.
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Victim as Aggressor
The guidelines’ list of permissive mitigating factors includes that “[t]he victim was
an aggressor in the incident.” Minn. Sent’g Guidelines 2.D.3(a)(1) (Supp. 2023). The
district court relied on that factor, noting that the victim “himself started the entire
situation.” The district court is correct: the victim began the “situation” by honking his
horn, swearing at Gutierrez’s brother, and challenging him to a fight. But Gutierrez’s
brother is the one who escalated the confrontation. The trial evidence shows that
Gutierrez’s brother brandished a firearm and “cocked” it. After the victim’s mother
pleaded with him to put the gun away, Gutierrez’s brother returned to his truck and placed
the gun inside the vehicle. But Gutierrez’s brother yelled that he “still want[ed] a piece of
[the victim],” approached the victim, and punched the victim. A physical fight ensued, and
the victim’s passenger joined to assist the victim. Gutierrez’s brother fought the victim
and passenger for several seconds. No weapons were involved and all participants in the
fight remained standing. In sum, although the victim was not entirely blameless,
Gutierrez’s brother was the one who approached the victim with a gun and then threw the
first punch.
Caselaw addressing the “victim aggression” factor is sparse. In State v. Larson, this
court concluded that “victim aggression” was a substantial mitigating factor that justified
a mitigated dispositional departure. 473 N.W.2d 907, 910 (Minn. App. 1991). In that case,
the victim picked a fight with the defendant “by spitting on him and punching him in the
face.” Id. at 908. The defendant “did not escalate the fight; he shook [the victim’s] hand
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and said everything was ‘cool.’” Id. “As they parted company, [the victim] threatened to
kill [the defendant] and his friends if he got his hands on them.” Id.
The victim’s actions in this case—honking his horn, swearing, and challenging
another driver to a fight while both men were seated in separate vehicles—do not compare
to the aggression in Larson. And I am not aware of any precedent suggesting that a verbal
exchange of threats alone is sufficient to justify application of the victim-aggression
mitigating-departure factor. I therefore cannot agree that the victim’s conduct in this case
constituted substantial and compelling aggression that made Guiterrez’s offense
significantly less serious.
Offender-Related Reasons
There is a long-standing rule that “[d]urational departures may be justified by
offense-related reasons only.” Rund, 896 N.W.2d at 533. In Rund, the supreme court
explained:
Offender-related reasons—such as particular
amenability to probation or treatment, remorse that does not
reduce the seriousness of the offense, or age—are not legally
permissible reasons for a downward durational departure.
Here, the district court relied on both offender- and offense-
related reasons. The offender-related reasons were Rund’s
age, his remorse and acceptance of responsibility, his lack of
substantial capacity for judgment, and his particular
amenability to probation and treatment. Because these are not
legally permissible reasons for a downward durational
departure, the district court’s reliance on these reasons was an
abuse of discretion.
Id. (emphasis added) (footnote omitted) (citations omitted).
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Rund was convicted of terroristic threats “in connection with a series of threatening
tweets directed at law enforcement officers.” Id. at 529. In granting the downward
durational departure—which the supreme court reversed—the district court said: “The
only reason this is less onerous is because of your age and of your mental state.” Id. at 531
(emphasis omitted). The district court in Rund explained:
Basically, young and dumb. Pretty good kid who did a bad
thing, and you affected a lot of people, but you got a lot of
promise in your life, too. Okay. That’s what I see when I shake
it all up. That’s really why the Court is doing what I am doing.
Id. at 532. Like the district court in Rund, the district court here relied on appellant’s young
age and lack of intelligence, noting that Gutierrez was a “stupid boy[]” with an
“undeveloped brain[],” who engaged in “the most stupid situation.” Under Rund, the
downward durational departure cannot be supported by offender-related factors such as
Gutierrez’s age or poor judgment.
The district court also noted that Gutierrez had “no criminal history” and “had been
a responsible hard-working member of our community.” But a “[d]efendant’s clean record
could not be a factor in justifying departure because that factor, in the form of defendant’s
criminal history score of zero, was already taken into account by the Guidelines in
establishing the presumptive sentence.” State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981).
In addition, the guidelines provide that employment factors “should not be used as reasons
for departure.” Minn. Sent’g Guidelines 2.D.2.c (Supp. 2023). In short, the district court
inappropriately relied on offender-related factors as reasons for its downward durational
departure. See State v. Peter, 825 N.W.2d 126, 131 (Minn. App. 2012) (“For the reasons
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just discussed, those additional characteristics of [defendant’s] relative youth, his family
support, his lack of a prior felony record, and his ability to obtain meaningful employment
and education are not bases on which the district court could rest its downward durational
departure.”), rev. denied (Minn. Feb. 27, 2013).
Lack of Intent
The district court mentioned several times that Gutierrez did not intend for the
underlying crime to occur. At the initial sentencing hearing, the district court stated: “I
have no doubt, Mr. Gutierrez, that you did not intend what happened to happen.” And at
the continued sentencing hearing, the district court said, “Gutierrez in no way planned to
shoot” the victim on the day of the offense, “[h]e was just going to Chick-fil-A for lunch.”
I understand the district court’s statements to mean that Gutierrez did not intend to commit
any crime that day, and not that Gutierrez did not intend to kill the victim (i.e., an element
of the offense). See State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008) (“Among the
boundaries identified for proper departure is that the reasons used for departing must not
themselves be elements of the underlying crime.” (quotation omitted)).
The fact that an offender did not initially intend to commit a particular crime is not
a valid reason for a downward durational departure. See State v. Dentz, 919 N.W.2d 97,
102 (Minn. App. 2018). In Dentz, we reversed the district court’s grant of a downward
durational sentencing departure for a conviction of soliciting a minor to engage in
prostitution. Id. at 99. In granting the departure, the district court relied on Dentz’s mental
state and commented on his initial intent to solicit an adult rather than a minor to engage
in prostitution. Id. at 101. The district court stated: “[B]asically [Dentz] solicited for what
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[he] thought was going to be consensual sex with an adult woman . . . and the person on
the other end then interjected . . . by the way, I’m 15 . . . . That’s not the same thing for
me as [Dentz] actively soliciting an underage female.” Id. at 100. We rejected that
reasoning stating, “the crime is not what he intended to do, it is what he actually did.” Id.
at 102.
Here, the crime is what Gutierrez actually did. See id. The fact that he did not
intend to commit any crime when he went to Chick-fil-A for lunch does not change the fact
that he unintentionally murdered the victim, nor does it make that crime significantly less
serious.
Remorse
The district court noted that Gutierrez “accepted responsibility for the role [he]
played, and [he] expressed and show[ed] remorse.” But “[u]nless a defendant can show
that his demonstrated remorse is directly related to the criminal conduct at issue and made
that conduct significantly less serious than the typical conduct underlying the offense of
conviction, remorse cannot justify a downward durational departure.” Solberg, 882
N.W.2d at 626.
During his trial testimony, Gutierrez admitted that he hit the victim with the firearm,
that he unintentionally fired it, and that he shot and killed the victim. He testified that he
“felt terrible” that the victim was shot. We have no reason to doubt that Gutierrez felt
remorse. Indeed, Gutierrez demonstrated remorse by calling or attempting to call 911 to
obtain assistance for the victim and by remaining on the scene to cooperate with the ensuing
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investigation. But the question is whether that remorse made the crime significantly less
serious. The supreme court has stated:
[S]howing the relevance of remorse to a durational departure
will not be an easy task: a durational departure may be granted
only if a defendant’s remorse—or lack of remorse—bears on a
determination of the cruelty or seriousness of the conduct on
which the conviction was based. In other words, unless a
defendant can show that his demonstrated remorse is directly
related to the criminal conduct at issue and made that conduct
significantly less serious than the typical conduct underlying
the offense of conviction, remorse cannot justify a downward
durational departure.
Id. (citation omitted). The Solberg court concluded:
Even crediting Solberg’s expressions of regret as
genuine . . . . Solberg did not engage in any remorse-driven
conduct that lessened the impact of the crime on the victim or
made his crime any less serious than other third-degree
criminal sexual assaults accomplished by coercion.
Id. (emphasis added); see Rund, 896 N.W.2d at 535 (reversing grant of downward
durational departure in part because the record did not reflect any remorse that “lessen[ed]
the impact of the crime on the victims or ma[d]e his terroristic threats any less serious than
the typical terroristic-threats offense”).
Despite Gutierrez’s expression of remorse and his actions consistent with that
remorse, the district court did not find, and my review of the record does not show, that his
remorse-driven conduct “lessened the impact of the crime on the victim” or made the crime
“less serious.” Solberg, 882 N.W.2d at 626.
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Collective, Collegial Experience
In the final analysis, I have considered whether Guiterrez’s offense is significantly
less serious than that typically involved in the commission of second-degree felony murder
by relying on my “collective, collegial experience in reviewing a large number of criminal
appeals.” See Mattson, 376 N.W.2d at 415 (“On the basis of our collective, collegial
experience in reviewing a large number of criminal appeals, we are satisfied that the
defendant’s conduct, although serious, was significantly less serious than that typically
involved in the commission of the offense of criminal sexual conduct in the second degree.”
(quotation and citation omitted)).
I am aware of only one appellate case in which the district court’s grant of a
downward durational departure in a second-degree felony murder case was challenged and
affirmed: State v. Martinson, 671 N.W.2d 887 (Minn. App. 2003), rev. denied (Minn. Jan.
20, 2004). In that case, the district court found Martinson guilty of second-degree felony
murder and sentenced him to a downward durational departure of 75 months in prison
instead of the presumptive sentence of 150 months. Martinson, 671 N.W.2d at 889, 891.
On appeal to this court, we noted that the guidelines provide that if “the offender, because
of physical or mental impairment, lacked substantial capacity for judgment when the
offense was committed,” that impairment may be a mitigating factor supporting a
downward departure. Id. at 891 (quotation omitted); see Minn. Sent’g Guidelines
2.D.3.a.(3) (Supp. 2023). We affirmed the downward durational departure in Martinson
because it was undisputed that the defendant suffered from “the psychosis of paranoid
schizophrenia” before, during, and after his commission of second-degree felony murder,
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which was a substantial and compelling factor that justified a downward durational
departure. Martinson, 671 N.W.2d at 892.
Here, there is no claim that Gutierrez suffered from a comparable mental illness.
And based on my collective, collegial experience in reviewing a large number of criminal
appeals, I am not satisfied that Gutierrez’s conduct was significantly less serious than that
typically involved in the commission of the offense of second-degree felony murder.
Length of the Departure
The state argues that “[e]ven if a stated reason to depart is affirmed, the appellate
court must also decide if the length of the departure was within the district court’s
discretion.” The state notes that “there is a complete absence of analysis on why [the stated
departure grounds] justified a sentence that was approximately 100-200 months shorter”
than the local cases on which the district court relied for comparative purposes. Finally,
the state argues that the 60-month prison sentence “disregards the significant harm” that
Gutierrez caused.
The guidelines state that “[a] departure is not controlled by the Guidelines, but
rather, is an exercise of judicial discretion constrained by statute or case law.” Minn. Sent’g
Guidelines 2.D.1 (Supp. 2023). As to the permissive length of a departure, the supreme
court has stated that when a departure is justified, “the extent of the departure should be
limited to that justified by the reason for departure.” State v. Schantzen, 308 N.W.2d 484,
487 (Minn. 1981). The supreme court explained:
We are unable at this time to establish or articulate a standard
by which to measure the sanction that should be imposed in
those situations in which a departure from the guidelines’
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presumptive sentence is proper. We must leave the problem to
the [district] court and modify any sanction imposed only when
we, after consideration of the total record, have a strong feeling
that the sanction imposed exceeds or is less than that
proportional to the severity of the offense of conviction and the
extent of the offender’s criminal history as aggravated or
mitigated by the circumstances of the offense and that the trial
judge exceeded his discretion in assessing the sanction.
Id. (footnote omitted) (quotation omitted).
Here, in addition to concluding that the departure grounds on which the district court
relied were either impermissible, inadequate, or insufficiently supported by the record, I
have a “strong feeling” that the sanction imposed is not proportional to the severity of the
offense as mitigated by the circumstances and that, therefore, the district court exceeded
its discretion by reducing Gutierrez’s sentence to only 60 months. Id. In reaching that
conclusion, I consider only sentences for second-degree felony murder, 4 and I am
influenced by our decision in Martinson. Again, in that case we affirmed a durational
departure from 150 months to 75 months for a second-degree felony murder conviction
because it was undisputed that the defendant suffered from “the psychosis of paranoid
schizophrenia” before, during, and after his commission of the offense. Martinson, 671
N.W.2d at 891-92. Assuming for the sake of argument that a downward durational
4
Although we affirmed a departure from a presumptive range of 100-140 months to 48
months in State v. Weaver, that sentence was for promoting prostitution, and not for
murder. No. A17-1993, 2018 WL 6442166, at *1-3, 6 (Minn. App. Dec. 10, 2018). In
addition, the Weaver majority reasoned that if the defendant “had had zero, rather than
four, criminal-history points, the presumptive guidelines sentence for his offense would
have been 48 months, the sentence that he received” and that the sentence therefore fell
“within the range generally contemplated for such an offense.” Id. at *6. Those are not
the circumstances here.
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departure was warranted in this case, I fail to discern why Guiterrez was entitled to a greater
departure than the actively-psychotic defendant in Martinson.
In sum, the district court abused its discretion both in deciding to depart and in
selecting the length of the departure.
Conclusion
“In sentencing, district courts have a great deal of discretion. Rarely do we hold
that it has been abused. But rarely is not never.” Soto, 855 N.W.2d at 305. In the final
analysis, “an abuse-of-discretion standard in our review of sentencing decisions, while
deferential, is not a limitless grant of power to the [district] court.” See id. at 312 (quotation
omitted). We should not hesitate to closely examine whether the district court’s departure
reasons meet the substantial and compelling standard necessary to justify a departure
because “[t]he sentencing guidelines lose all meaning” if the district courts do not adhere
to that standard when granting a departure. State v. Leja, 684 N.W.2d 442, 450 (Minn.
2004).
I conclude that the district court failed to adhere to the substantial and compelling
standard and that this is a rare case in which the district court abused its sentencing
discretion. Because the district court’s departure reasons are either legally impermissible,
inadequate, or insufficiently supported by the record, and because our deference to the
district court’s sentencing discretion is not unlimited, I would reverse and remand for
imposition of a presumptive sentence.